In our founding documents it states that the United States of America is a nation built by the people and for the people. Unfortunately most of the laws in our society and civilization have been reshaped by lawyers and sometimes in a self-serving way. One cynical person in our online think tank stated; “America; By the People, For the Lawyers!”

Of course immediately one of the lawyers in the group labeled him a cynical person, which he immediately admitted freely. But he said; “just because I’m a cynic does not mean I am not correct.” So the question is what do you think? This is an article of pure opinion as you can tell.

Are we still a nation built by the people and for the people or are we a modified hybred; being built by the lawyers and for lawyers. If lawyers make our laws and we have to hire a lawyer to tell us what those laws are and then hire another lawyer if those laws are inadvertently or accidentally broken then who are we truly serving; ourselves “The People” or the lawyers to whom we have to pay money to for advice on how to live or run our businesses.

The cynic in the group suggested that in his business, which is a successful construction firm, he had to call his lawyer every time he wanted to use the company restroom to make sure it was okay? Indeed, it has not got that bad yet, but it surely could at the present rate in my humble opinion.

I certainly hope this article is of interest and that is has propelled thought. The goal is simple; to help you in your quest to be the best in 2007. I thank you for reading my many articles on diverse subjects, which interest you.

The recent case of Rhodia International Holdings Limited and Rhodia UK Limited v Huntsman International LLC [2007], provides new guidance on a long-disputed area of contract law. According to the judgment of the High Court, a duty to exercise ‘reasonable endeavours’ requires less than ‘best endeavours’ but can still demand a party to act against its own commercial interests, although the case does not resolve all the uncertainty surrounding the difference between ‘reasonable’ and ‘best’ endeavours.

The case confirms that ‘reasonable endeavours’ is a less stringent obligation than ‘best endeavours’ – a concept which is commonly assumed. The case also confirms that a ‘reasonable endeavours’ obligation may be discharged by exhausting just one of a number of possible solutions, whereas a ‘best endeavours’ obligation requires all avenues to be explored.

Huntsman International LLC (“Huntsman”) had agreed to buy Rhodia International Holdings Limited and Rhodia UK Limited (“Rhodia”), a chemicals company. As part of the sale and purchase agreement both parties were to use reasonable endeavours to ensure that all supplier contracts passed from Rhodia to Huntsman, including one with a power company called Cogen.

However, Cogen refused to accept the transfer of the contract without a guarantee from Huntsman’s parent company. The argument over what was meant by reasonable endeavours focussed on Huntsman’s refusal to provide that guarantee. That refusal therefore affected the transfer of the contract with Cogen for the supply of power.

Huntsman paid for the power from the date of its purchase of Rhodia in 2001 until 2004. However, in 2004 Huntsman told Rhodia that it was pulling out of the location and that responsibility for the power contract remained with Rhodia until the contract expired in 2009. Huntsman submitted the reason for this being that the contract for the supply of power had not been transferred. Cogen claimed that £14.8m worth of power and services was owed, and the case concerned Huntsman and Rhodia arguing over who owed Cogen that amount.

The case was eventually decided on what constituted ‘reasonable endeavours’ to ensure the contract transferred from one company to the other. It was ruled that Huntsman International had breached the sale agreement by not using its reasonable endeavours to provide a guarantee for a power contract. Julian Flaux QC, sitting as a deputy High Court Judge in the case said:

“An obligation to use reasonable endeavours to achieve the aim probably only requires a party to take one reasonable course, not all of them, whereas an obligation to use best endeavours probably requires a party to take all the reasonable courses he can. In that context, it may well be that an obligation to use all reasonable endeavours equates with using best endeavours…”

The ruling in the case made it clear that the terms of the sale contract were binding, even if its terms no longer suited one of the parties. The companies must abide by their contractual obligation to make a reasonable endeavour even if it is against their company interests.

However, there are other authorities which suggest a slightly different viewpoint. In the absence of a specific course of action assumed by a party in the context of a reasonable or best endeavours obligation, neither obligation is likely to require a party to sacrifice it own commercial interests. It appears from the other authorities – which were not discussed in this case – that ‘reasonable endeavours’ may not even require the party giving such an obligation to act to its own disadvantage. This would suggest that relatively little effort is required to comply with a ‘reasonable endeavours’ obligation.

As far as the drafting of contracts is concerned, the best way to achieve certainty would be to specify the actions a party must take in using its ‘best’ or ‘reasonable’ endeavours wherever possible. The relevant party will then be bound to take those actions in any event and the question of whether those actions are contrary to that party’s commercial interests will not arise.

With the services of a business lawyer, you create a way to navigate through the maze of commercial lending procedures. Filling out the stacks of forms for a personal loan are difficult but this task is magnified when you are seeking to obtain commercial lending for a business venture. Some brave souls try to sidestep legal advisers and end up with more problems than they bargained for.

There are business lawyers who have extensive training and preparation in handling commercial lending applications and contracts. They are not just making sure that they legal documents are in order; they are safeguarding the interests of their clients. Without this additional expert advice and guidance, you may end up paying excessive rates due to clauses that were not adequately understood.

Commercial lenders and business lawyers all speak the same language when it comes to terms and contracts. You can rely upon your personal attorney answering your questions and explaining all of the documents, costs, and fees relative to asking for a loan in the Northeast, in language that you can understand. This is just one of the ways that business and tax lawyers can help you simplify business loans and commercial ventures.

When you are looking for a way to streamline the procedures involved with commercial lending a business lawyer is always your best option. Even before you get to the contract stage your attorney will go over facts and figures to make sure that you are getting the best deal. You may be more interested in just getting the loan approval but business lawyers want your best interests protected from application to closing.

The attorney has a complicated role when business transactions are involved. It is necessary for your business lawyer to triple check every word of each legal document you sign. It is also his responsibility to make sure that any changes are agreed to and recorded appropriately.

All commercial lending procedures are far more complex than personal loans. The terms and conditions may not get fully explained without a business lawyer being present. Most business owners and entrepreneurs immediately realize how valuable these legal services are.

There have been instances when people did not seek out the assistance of an attorney to help them with loans. The problems quickly surfaced when balloon payments, variable rates of interest and other little understood terms came into play. As any business lawyer will tell you, “Ignorance is no excuse.”

Having a business lawyer on your side at the beginning of any commercial lending venture means you will be fully apprised of the situation. Your attorney will look at all of the points presented in your proposal and the loan offer. If you can get better rates or terms this is the professional who can arrange these factors for you.

Even experienced businessmen have been exposed to less than honest lending practices. It is always in your best interest to have a business lawyer guiding your financial transactions. If something seems the least bit unorthodox, he will be the first to move to stop the proceedings on the spot.

You cannot be too careful in the volatile business and financial world we now live in. Having the experienced eyes and ears of a business lawyer gives you the edge when it comes to any type of legal transaction. If commercial lending is new to you, these services are crucial to protect your financial future and security.